Day v Woolworths Group Limited - [2018] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Woolworths Group Limited & Ors [2018] QCA 105

PARTIES:

OLGA DAY
(appellant)
v
WOOLWORTHS GROUP LIMITED
ACN 000 014 675
(first respondent)
CPM AUSTRALIA PTY LTD
ACN 063 244 824
(second respondent)
RETAIL ACTIVATION PTY LTD
ACN 111 852 129
(third respondent)

FILE NO/S:

Appeal No 158 of 2018
SC No 5774 of 2016
SC No 6016 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from Interlocutory Decision

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 27 November 2017 (Douglas J)

DELIVERED ON:

1 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2018

JUDGES:

Sofronoff P and Morrison JA and Atkinson J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where the appellant commenced proceedings seeking damages arising from injuries allegedly suffered as a result of a slip and fall incident in premises owned by the first respondent – where the appellant made an application for the proceedings to be consolidated with another proceeding against different parties, for the matter to be set down for trial and for declarations to be made that certificates of readiness signed by the respondents in the present proceedings were “false and misleading” – where the appellant’s applications were dismissed – where the respondents filed an application seeking orders that the appellant submit to independent medical examinations prior to the trial – where the respondents sought an order striking out parts of the appellant’s statement of claim – where the primary judge struck out paragraphs of the appellant’s statement of claim and ordered a stay of proceedings until the appellant submits to independent medical examinations – whether the primary judge erred in his Honour’s exercise of the discretion to order a stay, to strike out paragraphs of the statement of claim and to dismiss the appellant’s applications

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant submits that the primary judge was biased – where the primary judge had previously authored a paper discussing the problems presented to courts by ‘querulant self-represented litigants’ – where the appellant did not take issue with the primary judge’s hearing of the applications at first instance – whether a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of the applications to be decided

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM SUPREME COURT – BY LEAVE OF COURT – COSTS ORDERS – where the appellant seeks to appeal against the adverse costs order made by the primary judge – where the appellant failed to seek leave to appeal the costs order – whether an appeal against a costs order without leave can be maintained

Personal Injuries Proceedings Act 2002 (Qld), s 25, s 35, s 37
Supreme Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCA 105
Decision Date: 1 June 2018

CaseChat Overview and Summary

Day, the appellant, commenced proceedings against Woolworths Group Limited, the first respondent, seeking damages for injuries allegedly suffered in a slip and fall incident at a store owned by the respondent. The appellant sought to consolidate the matter with another proceeding, obtain declarations regarding the truthfulness of certificates of readiness, and set the matter down for trial. The first respondent filed an application for independent medical examinations and sought to strike out parts of the appellant’s statement of claim. The primary judge dismissed the appellant’s applications, struck out paragraphs of the statement of claim, and ordered a stay of proceedings until the appellant submitted to medical examinations. The appellant sought to appeal this decision, arguing that the primary judge was biased and that the costs order should be reviewed.

The court was required to determine whether the primary judge erred in exercising the discretion to order a stay, strike out parts of the statement of claim, and dismiss the appellant’s applications. The court also needed to decide if the primary judge was biased, given his previous writings on self-represented litigants, and whether the appellant could appeal the adverse costs order without leave. The primary judge’s decision to order a stay and strike out parts of the statement of claim was based on the need for medical evidence and the relevance of the struck-out paragraphs to the proceedings. The court found no basis for a finding of bias, as the primary judge had not exhibited any signs of partiality in hearing the matter.

The court found that the primary judge did not err in exercising the discretion to order a stay and strike out parts of the statement of claim. The primary judge's decision was reasonable given the need for medical evidence and the lack of relevance of the struck-out paragraphs. The court also found no evidence of bias on the part of the primary judge. The appellant's failure to seek leave to appeal the costs order meant that the appeal against the costs order could not be maintained. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Day v Woolworths Group Limited & Ors [2018] QCA 105
PARTIES:	OLGA DAY (appellant) v WOOLWORTHS GROUP LIMITED ACN 000 014 675 (first respondent) CPM AUSTRALIA PTY LTD ACN 063 244 824 (second respondent) RETAIL ACTIVATION PTY LTD ACN 111 852 129 (third respondent)
FILE NO/S:	Appeal No 158 of 2018 SC No 5774 of 2016 SC No 6016 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from Interlocutory Decision
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 27 November 2017 (Douglas J)
DELIVERED ON:	1 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2018
JUDGES:	Sofronoff P and Morrison JA and Atkinson J
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where the appellant commenced proceedings seeking damages arising from injuries allegedly suffered as a result of a slip and fall incident in premises owned by the first respondent – where the appellant made an application for the proceedings to be consolidated with another proceeding against different parties, for the matter to be set down for trial and for declarations to be made that certificates of readiness signed by the respondents in the present proceedings were “false and misleading” – where the appellant’s applications were dismissed – where the respondents filed an application seeking orders that the appellant submit to independent medical examinations prior to the trial – where the respondents sought an order striking out parts of the appellant’s statement of claim – where the primary judge struck out paragraphs of the appellant’s statement of claim and ordered a stay of proceedings until the appellant submits to independent medical examinations – whether the primary judge erred in his Honour’s exercise of the discretion to order a stay, to strike out paragraphs of the statement of claim and to dismiss the appellant’s applications APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant submits that the primary judge was biased – where the primary judge had previously authored a paper discussing the problems presented to courts by ‘querulant self-represented litigants’ – where the appellant did not take issue with the primary judge’s hearing of the applications at first instance – whether a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the resolution of the applications to be decided APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM SUPREME COURT – BY LEAVE OF COURT – COSTS ORDERS – where the appellant seeks to appeal against the adverse costs order made by the primary judge – where the appellant failed to seek leave to appeal the costs order – whether an appeal against a costs order without leave can be maintained Personal Injuries Proceedings Act 2002 (Qld), s 25, s 35, s 37 Supreme Court of…